Wills

omitted after-born child has right to share of estate unless: (1) it appears from the will that admission is intentional (2) Testator provided for omitted child (i.e. by substitute)

Omitted child's share under UPC

Typically intestate share. UPC - If a gift is made to an existing child, gift is divided among omissions

UPC for omitted spouse

Can show the omission was not a mistake if it appears from the will or other evidence: (1) Will was made in contemplation of marrigage (2) Will explicitly stated intent to be effective not withstanding any subsequent marriage (3) Spouse provided for in transfer outside the will

HOWEVER, if property left entirely to descendents, will not assumed a mistake

Restatement - Dead Hand Control

Intent of donor controls - R10.1: The controlling consideration in

determining the meaning of a donative document is the donor’s intention. The donor’s intention is given effect

to the maximum extent allowed by law

Intent must be reliably determined

Can you impose a partial restraint on marriage? Majority/Restatement

Majority - Upheld, but look at the motive behind the condition.

(Concern about wellbeing and providing

support?)

Restatement 3 – Condition putting a partial restraint

is too intrusive or personal and should probably be invalid

Shapiro v. Union National Bank

Permitted as long as it is reasonable (assessed

at the time of death) - Reasonable means the permitted marriage is likely to occur. Ct. upheld a

condition that son must marry a Jewish girls, with two Jewish parents, within seven years of father’s death because it was likely that the marriage could

occur and the intent of the deceased was to strengthen the Jewish faith – which was evidenced by the fact that if the son did not marry, the money should go to Israel

Are incentivize trust enforceable?

Generally

Do attys owe a duty to third party beneficiaries of wills? (Maj/Min/RS)

Majority - Atty who drafts a will owes duty of reasonable care to beneficiaries of the

Fraud - if the atty’s services have been provided in connection with perpetrating a fraud, then it is okay to breach the duty of confidentiality to remedy the fraud

Conflict of interest - A v. B: Atty representing husband and wife in estate planning. Same firm represents a woman suing husband for paternity. Clerical error caused firm to miss the conflict. In couple’s will, everything goes to children. Would this include

illegitimate child? Atty could break duty of confidentiality to tell wife about the child.

Uniform Simultaneous Death Act

If two people die within 120 hours of each other, each is determined to have predeceased the other

Janus v. Tarasewicz

husband and wife both took cyanide laced Tylenol. Husband died on the way to hospital. Wife survived on life support for a day or so longer. Trial court found no sufficient evidence that wife was brain dead upon arrival with husband. Appellate court affirmed.

- if there is no sufficient evidence of the order of death, you treat it as each spouse died first

- Question arises over what constitutes “sufficient evidence” of the order of deaths

- Burden of showing sufficient evidence rests on the party who claims survivorship

How does simultaneous death effect joint tenancy with the rights of survivorship

If they die within 120 hours of each other – ½ passes to each persons heirs or devisees, effectively it is converting the joint tenancy to a tenancy in common

When should an amount given to the child during the parent’s life be deducted from the child’s distribution at the parent’s death?

Common law: any lifetime gift by the decedent was presumed to be an advancement of the child’s intestate share

UPC: Something given during decedent’s lifetime is an advancement only if: (1) Decedent declared in an contemporaneous writing or heir acknowledged in a writing that it was an advancement or (2) Either such writing states that the gift is to be taken into account in the distribution of property

Some states: Presumptively, the gift is not an

advancement unless it is shown to have been intended as such

What if there was not enough money in the estate after the advancement was made?

Estate is just divided among the child who had not received the gift. Receiver of gift does not have to give

Drye disclaimed his interest in his mother's estate so it would pass to his daughter in hopes to avoid IRS liens. Ct held that Drue held the property or right to property when he disclaimed it, so it is subject to IRS tax liens

Disclaimer and Medicaid eligibilty

5 year look back period - if you make gift of assets more than 5 years before eligibility claim, it is okay

Restatement Test for mental capacity

Must know and understand in a general way: (1) the nature and extent of his or property; (2) natural objects of bounty; (3) Disposition that he or she is making; (4) Be capable of relating these elements to one another

Burden of proof of mental capacity

Majority - if proponent can show (1) due execution and (2) decedent is dead, contesting party has burden of persuasion to show lack of capacity

Minority - Once presumption of capacity is rebutted, burden on preponent to prove capacity by preponderance of the evidence

In re Estate of Washburn

(following the minority approach of burden of proof): Two will changes in a short period of time combined with the existence of alzheimer’s was enough evidence to rebut the presumption of capacity. Testator could not further prove capacity by the preponderance of the evidence.

Wilson v. Lane

(following the majority approach of burden of proof): Eccentric woman devised property to 17 beneficiaries. The court held there was no evidence that Greer lacked testamentary capacity

Ante Mortem Probate

Permitted in minority of jurisdictions - The writer of a will can institute an adversary proceeding during life to seek a determinative declaratory judgment that there is capacity, no undue influence, and the formalitites were complied with

Test for insane delusions

(1) Persistent belief; (2) with no existence in fact; (3) that materially effected the will

Breedon v. Stone

created a holographic will before killing himself after killing someone else in a hit and run accident. Court held no insane delusion that materially effected the will

undue influence in a case of a man distancing himself from his family and

leaving everything to a man with whom he had a homosexual relationship

If contestor is successful in challenging a will with a no-contest clause

Will is invalidated

If contestor loses in challenging a will with a no contest clause

UPC/Majority - will not enforce clause if there was probable cause to contest

Minority/OH - No contest clause enforced

Bequests to atty and undue influence

UPC and Many courts: presumption of undue influence arises

when an atty drafter receives a legacy, except when related to testator

- Atty can rebut presumption with clear and

convincing evidence

Requirements for fraud

(1) testator deceived by deliberate misrepresentation; (2) performs testamentary act which he would not have done had the representation not been made

Types of fraud

In the inducement; In the execution

Puckett v. Krida

caregiver told testator

that her niece was going to put her in a nursing home and was misspending her

money, neither of which was true.

Duress

When a wrongdoer threatened to perform or

did perform a wrongful act that coerced the donor into making a donative

transfer that the donor would not have otherwise made

Latham v. Father Divine

if allegations could prove unjust enrichment by duress,

father divine would be given the award in a constructive trust

Cause of Action for tortious interference with expectancy

(1) Existence of an expectancy; (2) Intentional wrongful interference with the expectancy through a tortious act; (3) Causation; (4) Damages

How tortious inference with expectancy differs from will contest

(1) separate than probate proceedings; (2) SOL runs from time P should or should have discovered the fraud; (3) can recover punitive damages; (4) normallty does not fall under plain vanilla no-contest clause

Schilling v. Herrara

Caregiver brings testator

to her home to care for her.

Testator creates new will naming caregiver as beneficiary. After testator dies, caregiver waits

(1) Attestation and signature by two witnesses AND (2) Acknowledged by testator before a notary public

UPC requirement for witness signatures for attestion

within a reasonable time after acknowledgment

Doesn't have have to be in each others' presence

Traditional rule for attestation requirement

Strict compliance

In re Goffman

Testator did not

acknowledge his signature in the presence of both the witnesses. Ct refused to probate will.

Stevens v. Casdorph

Testator was in a

wheelchair and did not sign in the presence of the witnesses. Ct. held will not valid

Tests of "presence" for attestation purposes

(1) Line of sight test; (2) Conscious present test (Majority)

Line of sight test (attestation)

testator does not actually

have to see the witnesses sign but must be able to see them were the testator

to look

Conscious presence test

the witness is in the

presence of the testator if the testator, through sight, hearing, or general

consciousness of events, comprehends that the witness is in the act of signing

What is the purpose of the signature requirement

to provide evidence of finality and genuiness

What is a valid signature

what the testator intended to validate will as her signature

Requirement of order of signatures to establish the attestation clause

in general - the testator must sign first. In most jurisdictions and under the UPC, it is okay if it is part of a single, continuous transaction

Dispositive provisions below a signature if a signature at the end is required

If provision was there after signature - considered a codicil and requires the formalities of a will. If provision was there before the signature - Majority: entire will would be invalid; Minority: only the provision would be invalid

Clearn and convincing evidence that decedent complied with the formalities

In re Will of Ranney

Signed a self-proving

affidavit, but it referred to the execution in the past tense. The court upheld because of substantial

compliance with formalities

Dispensing Power of the UPC

A document or writing is treated as if it had been executed in compliance with the formalities if the proponent can show by clear and convincing evidence that decedent intended the writing to be: (1) Will; (2) partial or complete revocation of the will; (3) an additional to or alterative of the will; (4) partial or complete revival of a formally revoked will or a formally revoked portion of the will

In re Hall

husband and wife signed a joint will. They decided to make changes and wrote them on the draft in lawyer’s office. Lawyer was supposed to print out a formal will, but never did. Lawyer informed husband that will would be valid if he died before changes were made. Wife tore up old will. Husband died. Changes never made. Court held will valid bc the court has the right to dispense of compliance with the formalities if there is clear and convincing evidence of intent.

In re Ferree

Ct would not probate a will that was notarized, but not attested

In re Gonzalez

Filled out a preprinted will form. Intended to rewrite it more neatly on another pre-printed will form. Signed the blank one. Died before he ever rewrote it. The words that were testamentary in nature were preprinted – not in testator’s handwriting. Ct. upheld the will by incorporating both documents. (Some states hold opposite)

Rule for holographic will

Must be in testator's handwriting and signed by testator

Where must a signature be in a holographic will

In almost all states - anywhere - but if not at the time, it may raise doubt to intent

OH - signature must be at the end

Extent of testator's handwriting. Three generations of rules

Current UPC - (1) material portions must be in testator's handwriting; (2) Extrinsic evidence is allowed

Old UPC: material provisions had to be in testator's handwriting

1st statutes - must be entirely in handwriting of testator

Revoking a will by subsequent writing

Revocation if expressly stated. Modern view: even without express statement, second will presumptively revokes if inconsistant

If testator writes second as a codicil and later destroys it....

reverts back to first one because it was never revoked

If testator creates subsequent codicil and destroys the first will ...

Modern approach - second one stands - rest of the estate is offered for intestacy Traditional common law approach - codicil ties into will, so revocation of the will presumptively revokes all codicils

Three requirements for revocation by physical act

(1) The act; (2) The intent to revoke; (3) Testator performing the act (or - UPC - proxy at their direction AND in their conscious presence)

Cancellation words

UPC - must be on the will, but does not have to touch the words of the will. Common Law - Must touch words of will

Thompson v. Royall

Ripped up will, but saved it. Void was written on the back. The court held the will was not properly revoked. Must touch the words of the will

Presumption with a lost will

Presumed destroyed with an intent to revoke if (1) it was in the possession of the testator and (2) it cannot be found. Proponent has the burden of rebutted the presumption.

Harrison v. Bird

Wanted to revoke will. Lawyer tore it up outside of the presence of testator, but mailed testator the pieces. After death, will could not be found. Ct. held there was a presumption that testator destroyed it to revoke and proponent could not rebut the presumption.

Approaches to partial revocation by a physical act

(1) UPC - allows and gives its logical effect; (2) Other - allows, but does not allow it to increase the gifts of others; (3) OH - cannot partially revoke by physical act

Dependant Relative Revival

If the testator purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth.

When to apply the doctrine of dependant relative revival

(1) Subsequent instrument is invalid; (2) the mistake is recited in the terms of the revoking instrument or it is established by clear and convincing evidence

LaCroix v. Senecal

Created an ineffectivecodicil. Assume the testator would have rather reverted back to the original will rather than to die intestate. Ct. held the original will to not have been revoked.

Approaches to revival

(1) Minority - cannot be revival unless reexecuted with the formalities; (2) English common law (Minority) - Will 1 was never revoked unless will 2 remains in effect until death; (3) Maj/UPC - Will 1 is revived if testator so intends - shown by (a) surrounding circumstances (b) contemporaneous or subsequent oral declarations

Estate of Auburn

Had a will. Made a second. Revoked the second. Testimony that she wanted the first to be valid again. Ct. used DRR – that she revoked the second will on the mistaken presumption that the first will would be valid again

Revocation by divorce

UPC - revokes both probate and nonprobate

majority - revokes provision in the will

minority - revocation only if divorce is accompanied by a property settlement

How does divorce effect gifts to relatives of ex under UPC

also revokes them

Effect of remarriage on previously executed will

Majority - gives the spouse his intestate share, unless it appears from the will that the omission was intentional or the spouse is provided for in the will or by a will substitute with the intent that the transfer be in lieu of a testamentary provision

Minority - revokes premarital will

Effect of birth of children on previously executed will

UPC/Majority - pretermitted child statutes

Minority - marriaged followed by birth of child revokes prior will

Doctrine of incorporation by reference

a writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification

Wills reference to written statement or list to dispose of tangible personal property (UPC)

(1) must be signed by testator (2) Must describe the items and devisees with reasonable certainty (3) May be prepared before or after the execution of a will (4) May be referred to as one in existence at the time of testator's death (5) May be altered by testator after preparation (6) May be a writing that has no significance apart from its effect on the dispositions made by the will

Clark v. Greenhalge

Decedent had a memorandum with a list of personal property to be distributed. In a different notebook, she had a note that a painting was to go to her friend. Ct. held that the memo was incorporated by reference. When the codicils are added, the will is republished. Codicils were made after the notebook, so the notebook existed at the time of the signing of the will.

Acts of Independant Signficance

A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will or before or after the testator’s death. The execution or revocation of another individual’s will is such an event

Integration of Wills

All papers present at the time of execution, intended to be part of the will, are integrated into the will (Look at Initials, Numbered, Bound, Language logically follows to the next page)

Republican by codicil

A will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testator’s intent

Proving a will contract

UPC - Established by: (1) provisions of a will stating material provisions of the K; (2) An express reference in the will or K to a K and extrinsic evidence proving the terms of the K; (3) writing signed by decedent evidencing K

Had mutual wills with children as residual beneficiaries if spouse predeceased. Wife died. Husband remarried. Ct. held the children as third-party beneficiaries of mutual wills cannot defeat the wife’s interest under the pretermitted spouse statute. FL said public policy required the wife to come first (Minority Rule). In Majority - the third party beneficiary would prevail

Traditional (majority) approach with mistakes in wills

Either of no extrinsic evidence or no reformation

Mahoney v. Grainger

Decedent left residue of

her estate to her heirs to share equally.

Extrinsic evidence showed she meant that to be her cousins. Her heir was her aunt. The court stated the language was not

ambiguous, so the aunt received the residue.

In re Estate of Smith

Left to nursing home. NV corp. sold the nursing home. Money went to NV corp.

Nat’l Socy for the Prevention of Cruelty to
Children v. Scottish Natl Socy for the Prevention of Cruelty to Children:

Willed to wrong name of

society in English. Meant to give

to society in Scotland Award went to London bc plain meaning.

Exceptions to no reformation/no extrinsic evidence rules

(1) UPC - ct may reform, even if unambiguous to conform to testator’s intent if it is proved by clear and convincing evidence that the intent and terms of the instrument were effected by mistake of fact or law, either in expression or inducement. (2) Mere erroneous description. (3) Details of identification. (4) Personal usage. (5) Correct scrivener's error

Arnheiter v. Arnheiter

Wills gave interest to property at 304 Harrison Ave. Testator only owned property at 317 Harrison Ave. Ct. said it cannot change the will, so it took its “fictional eraser” and deleted the erroneous language

Estate of Gibbs

Will gave gift to Robert J. Krause at 4708 North 46th. But meant to go to Robert W. Krause at a different address. Ct. allowed extrinsic evidence.

Moseley v. Goodman

Gift was to go to “Mrs. Moseley” wife of man who owned Moseley’s cigar store. Her actual name was Mrs. Trimble. Ct. gave the award to Mrs. Moseley.

Erickson v. Erickson

Will devised to wife Dorothy, but they were not married at the time will was executed. Statute did not expressly provide for the contingency of marriage kids argued that when they married, it revoked the will by the pretermitted spouse statute. Ct. remanded for the wife to present clear and convincing evidence to correct the mistake.

Anti-lapse statutes

What is supposed to go to predeceased goes to his decendents by representation

When to apply anti-lapse statutes

(1) will does not provide a contingency; (2) devisee is related to T in a specified manner; (3) Has at least one descendent who survives T; (4) Will does not negate an anti-lapse statute

Under common law, what happens if a specific or general devise lapses

falls into residue

Under common law, what happens when residuary gift lapses?

heirs of testator take by intestacy

Under common law, what happens when a class gift lapses?

the surviving members divide the gift

Do Words of survivorship negate anti-lapse statute?

UPC - do not negate absent other evidence to contrary

Majority- do express intent to the contrary

Routolo v. Tietjan

Gift to step-daughter “if

she survives me.” Ct. held that

survivorship language alone is not enough to express an intent to negate the

anti-lapse statute

Lapsed gift under the UPC

Descendents take by representation if:

-Devisee must be grandparent or lineal

descendent of grandparent

-Issue that survives testator by 120 hours

can take in place of deceased devisee

Dawson v. Yucus

Made gift of interest in property to 2 of

her husband’s nephews. Ct held it

was not a class gift because there were others in the same degree of relationship

not considered in the gift, the amount of the share was defined, she explicitly

left a class gift properly in a different part of the will

Theories of ademption

Identity (traditional) – if a specific gift is not in testator’s estate, the gift is extinguished

Intent – beneficiary may be entitled to the replacement for, or cash value of, the original item, if the beneficiary can show that is what the testator wanted

UPC – right to property that decedent aquired as a replacement - prevents ademption if there is proof that ademption would be inconsistent with the decedent’s intent, tracing is not required – receives value of property paid for out of other assets of estate

Modified identity theory - In re Estate of Anton

Power of atty sold house to pay medical

expenses after nursing home told poa not to bring up finances to decedent. Ct. held house was not adeemed and beneficiary

was entitled to proceeds

Doctrine of satisfaction of general pecuniary bequests

Common law– question of intent – did testator intent gift to be taken out of will

UPC – will not be treated as partial satisfaction unless there is a writing evidencing intent

Exoneration of liens

Common law

– mortgage paid off by estate

UPC – Take home with debt absent an express statement otherwise

Order of abatement

Residuary devises

General devises

Specific and demonstrative devises –

reduced pro rata

Restatement- when are will substitutes subject to the law of wills

To the extent appropriate

Farkas v. Williams

Ct. held a property

interest passed to the beneficiary – a contingent equitable interest in the

remainder. So, passed before death

and is not testamentary

Linthicum v. Rudi

Ct. held beneficiaries of a trust did not have standing to

contest the trust because there is no interest until death

In re estate of Pilafas

had a revocable trust that

was missing at death. Issue was

whether the law of wills that missing will gives the presumption of revocation

applies. Ct. held the trust itself

set specific terms for revocation, so the trust was not revoked.

When a trustee is breaching his fiduciary duty

During settlor's life, only settler can enforce

UTC - beneficiary can bring challenge, but only at settlor's death

Can file for a guardian if problems occur during life and assets start to dissipate

Creditor's right and revocable trust

Restatement/UTC/ State street bank - creditor can reach trust assets after death

what can't a creditor reach

JT, life insurance, retirement, some US savings bonds with POD benefits

H and W divorce, H marries a new woman and executes a holographic will that says he leaves her the insurance policy, but he had never changed the beneficiary (still his 1st wife); Court finds that it goes to the first wife, because you can’t change the beneficiary by will

Does UPC apply to insurance beneficiary designation made before the effective date of the statute

Most cts have upheld retroactive application

Egelhoff v. Egelhoff

Pension govered by ERISA. Ex-wife was beneficiary. WA statute stated wife’s status would be revoked upon divorce. ERISA requires payment to the beneficiary named. Ct. holds ERISA preempts state law because the statute explicitly states it preempts state laws, there is a significant effect because it would change the beneficiaries, and ERISA goal is to administer a nationally unified plan

Ways around Egelhoff

Slayer statutes contradict ERISA

Well established part of federal common law that a slayer can't benefit

Federal common law recognized substantial compliance

Types of joint bank accts

JT

POD

Agency acct - Convenience acct

Theories to validate a pour over will

Incorporation by reference (cannot incorporate documents after Will was executed/ if the trust is amended, will needs amended)

Independent significance (trust does not have to be in existence when the will was executed, but it must have assets at the time of death)

UTATA - a will giving assets to a trust is valid even if the trust is amended or created after the will and even if the trust is unfunded

Clymer v. Mayo

an unfunded trust with the trust as beneficiary of will, insurance policy, and retirement fund. H took nothing because the trust was unfunded and only spoke at death. Ct. confined holding to specific facts of this case

Differences between JT in land and JT in acct

Ownership of assets during life

Bank acct - net contribution rule

Unilateral undoing of the act

realty - to sever, transfer into tenancy in common

bank acct - can unilaterally close the acct

creditors

realty - creditor cannot reach after death

bank acct - creditor can access decedent's interest

Power of atty and trusts

Majority - an agent acting under poa can create, modify, or revoke a trust if the power to do so is expressly granted in the poa instrument

in re Kurrelmeyer

W, under durable poa, created a trust to give herself a particular interest in a house. The trust gave her more than under the will. Ct. held she could create a trust because provisions in the trust instrument allowed it

quasi-community property

If couple lives for a number of years in a non-community property jurisdiction, then they move to a community property jurisdiction, they may get an elective share

Rights afforded to surviving spouse by federal law

Social security

Employee pension plans

Rights afforded to surviving spouse by state law

Homestead right

exempt tangible personal property

family allowance

Can the guardian of an incompetent surviving spouse elect against decedent's will if it is in the best interest of the spouse

UPC - yes, independent of any needs determination, but the money is to be put in trust and used only for needs - after death, it is put back in the trust to go to whoever decedent wanted it to go to

Majority - consider all the surrounding facts and circumstances

Minority - yes, if it is to spouse's economic benefit, calculated mathematically

Cross v. Cross

B has alzheimers and is institutionalized. Ct. held guardian could elect because otherwise she would lose Medicare

Should the elective share extend to nonprobate transfer

Majority - if you create a revocable trust during the marriage with your estate, then it will be subject to the elective share

Minority - elective share cannot reach nonprobate transfers

Bongaards v. Millen

Exception to extending elective share to non-probate transfers - when a third party creates the trust. although this is purely a matter of form, not substance

UPC and elective share

Considers the "augmented assets" of both spouses. Uses an approximation formula dependent on the length of marriage.

Can surviving spouse waive the right to an elective share

Yes, by premarital agreement

UPC - when is a pre-martial agreement unenforceable

- The party attacking it did not execute it voluntarily (duress)

- It was unconscionable when executed AND

--party did not get full and fair disclosure

--did not voluntarily waive any right to full and fair disclosure

--did not have, or reasonably could have had, adequate knowledge of the property or financial obligations

Reece v. Elliot

Financial statement listed shares, but did not state value. Value was significant. Ct. held the pre-marital agreement valid because W had knowledge that H was wealthy, independent counsel, and the opportunity to ask questions. Basically, the ct was saying W waived opportunity to find out worth.

UPC omission of spouse

Show omission was not a mistake if it appears from the will or other evidence: (1) will was made in contemplation of marriage to spouse; (2) Will explicitly stated intent to be effective not withstanding any subsequent marriage; (3) the spouse was provided for by transfer outside the will

HOWEVER, will not assume mistake if property is left entirely to descendents

In re estate of Prestie

Married, divorced, H creates pour over will and trust with son as beneficiary, gets cancer, W takes care of H, gives her life estate in trust, remarries. Ct. holds W is not provided for in the will; she is provided for in the trust, and statute explicitly stated will. Issue for the legislature to change (Note this would likely come out differently in other jurisdictions that treat trusts like wills).

UPC omitted child

Omitted afterborn child has right to share of estate unless: (1) It appears from the will that the omission is intentional; (2) the testator provied for the omitted child

What is omitted child's share under the UPC

If a gift is made to an existing child, that gift is divided among the existing children and any omitted afterborns. Otherwise, it is generally the intestacy share

Gray v. Gray

Assets were in revocable trust. Statute says probate assets. Ct. held son losses, statute limited to probate assets. Does not follow restatement . Issue for legislature.